jury declare in one finding that the accident would have happened though decedent had not been negligent, and in another that his negligence contributed to it, and it does not appear that any deduction was made on that account.Pyles v. Atchison, T. & S. F. Ry. Co., Kan., 155 Pac. 788.

72. Mechanics' Liens Subcontractor.-The failure of the contractor to complete his contract does not of itself defeat the rights of the subcontractors to their liens, and they are entitled to protection for what they have done or furnished under the contract.-Zilz v. Wilcox, Mich., 157 N. W. 77.

73. Mortgages - Equitable Interest. The purchaser of the equitable interest of the mortgagee of a part owner of timber lands standing in the name of a timber company purchased at his peril, acquiring the property burdened with every prior equity, more especially where the purchase was under judicial sale.-Thomas v. Scougale, Wash., 155 Pac. 847.

74.--Nonsuit.-A foreclosure of a mortgage under a power of sale will not be treated as a continuation of a previous action to foreclose in which the mortgagee submitted to a voluntary nonsuit.-Corey v. Hooker, N. C., 88 S. E. 236.

75. Municipal Corporations Discretion. Where legislative or discretionary powers are conferred upon municipal corporations, the courts will not interfere unless in the exercise of such discretion there is fraud, manifest oppression, or gross abuse.-Mortell v. Clark, Ill., 111 N. E. 993.

76. -Respondeat Superior.-Where a pedestrian was injured by an automobile operated by one who had just bought it, the dealer who sold the car was not liable, though a mechanic furnished by him was in the car merely to observe its operation without interfering with or instructing as to its management.-Keck Jones, Kan., 155 Pac. 950.

V.

77. Navigable Waters-Public Highway.A river in fact navigable though very little used for navigable and largely used for other purposes is nevertheless a public highway.-Bissell Chilled Plow Works v. South Bend Mfg. Co., Ind. App., 111 N. E. 932.

78. Negligence Imputability. The negligence of the driver of a motorcycle is not imputed to his invited guest who was riding on the rear seat thereof.-Sanders v. Taber, Ore., 155 Pac. 1194.

79. Manufacturer.-In order to make the manufacturer liable for defects in goods sold, he must have knowledge that in the usual course of events the danger will be shared by others than the buyer, although mere knowledge alone is insufficient to create liability.MacPherson v. Buick Motor Co., N. Y., 111 N. E. 1050.

80. Partition Counsel Fees. In a partition suit, no allowance should be made counsel for their services in contested matters between the parties in partition.-Parrish v. Treadway, Mo., 183 S. W. 580.

81.

Partnership-Action.-Action at law between partners upon a claim growing out of a partnership transaction will not lie until the business is wound up and accounts settled.--Li Sai Cheuk v. Lee Lung, Ore., 156 Pac. 254. 82. Patents-Dismissal of Action. Where, though expense had been incurred in taking testimony and in other ways, evidence in patent suit was not closed, plaintiffs still had right to dismiss.-E. G. Staude Mfg. Co. v. Labombarde, U. S. D. C., 229 Fed. 1004.

to

83.- -Estoppel.-A corporation formed manufacture a device alleged to infringe patents granted to and assigned by one of the incorporators held bound by any estoppel which bound him.-Crown Cork & Seal Co. of Baltimore City v. Carper Automatic Bottling Mach Co. of Baltimore City, U. S. D. C., 229 Fed. 743. 84.-Novelty. In approaching the consideration of the patentable novelty of an article of wearing apparel, it is well, in a doubtful case, to weigh cautiously the influence of commercial utility.-Epstein v. Dryfoos, U. S. D. C., 229 Fed. 756.

85. Priority of Invention.-Whether an alleged anticipating patent was a part of the prior art depends, not on priority of invention, but on whether the invention of the later patent was made prior to the issue of the first patent.-Miner v. T. H. Symington Co., U. S. C. C. A., 229 Fed. 730.

86. Pawnbrokers-Conversion.-Pawnbroker, who loaned money to plaintiff's agent on ring belonging to plaintiff and refused to return it to plaintiff on his demand, held liable as a bailee for conversion, although he might have returned the ring to the agent before demand by plaintiff. Schmeltz v. Morino, Mo. App., 183 S. W. 666.

87. Principal and Agent-Accounting.-In the absence of an express agreement to the contrary, advancements made by an agent for his principal's benefit to carry out the agency are items of the account between them, and contract loans or debts.-Flanagan v. Flanagan Coal Co., W. Va., 88 S. E. 400.

not

89.- Ratification.-Where a sales agent had no authority to make waranties other than those contained in the written contract signed by the purchaser, which declared that it should contain all of the agreements between the parties, a parol warranty by the sales agent is not binding, unless ratified by the seller. First Nat. Bank of Garner, Iowa, v. Smith, Tex. Civ. App., 183 S. W. 862.

90.- -Rescission.-Where goods to be sold on commission are defective in materials and workmanship, that alone is sufficient to justify rescission by the selling agent.-Kennedy v. Meilicke Calculator Co., Wash., 155 Pac. 1043. 91. Railroads-Adjacent Owner. Where a railroad constructs an embankment to raise its road, so that clay is washed therefrom onto the lawn of an adjacent owner, recovery may be had therefor.-Pittsburgh, C., C. & St. L. Ry. Co. v. Lamm, Ind. App., 112 N. E. 45.

92.-Crossing Accident.-Plaintiff, who was driving and intestate, accompanying him, were negligent in going on a railroad track, without stopping, looking, or listening, though the gates were not lowered and no warning was given.— Southern Ry. Co. v. Jones' Adm'r., Va., 88 S. E. 178.

93. Look and Listen.-Motorists were negligent barring recovery for injuries resulting from a collision, where they failed to look and listen for trains, if by stopping before reaching the tracks they could have seen an approaching train and avoided injury.-Washington & O. D. Ry. v. Zell's Adm'x., Va., 88 S. E. 309.

94. Negligence.-In an action against a railroad for injury from falling over a stake, defendant, engaged in changing the grade of a private street or way, even if the stake was on the line of an old fence on private land but made the use of the sidewalk dangerous, could be found to be negligent.-Coles v. Boston & M. R. R., Mass., 111 N. E. 893.

95. -Presumption.-Under the statute, excepting the yard, garden, dwelling house, and graveyard of an owner from acquisition by a railroad for a right of way, in the absence of consent, the railroad cannot acquire the land by presumptive consent from lapse of time.— Atlantic Coast Line R. Co. v. Dawes, S. C., 88 S. E. 286.

96. Release-Fraud.-A release of a personal injury claim, procured by fraudulent representations of the defendant railroad company's doctor that the injuries were slight and temporary, held not binding where the injuries proved to be serious and permanent.-Ladd v. Chicago, R. I. & P. Ry. Co., Kan., 155 Pac. 943.

97. Remainders-Contingent Interest.-Where land was deeded for the use and benefit of one named and the heirs of her body, and a child

of the beneficiary died before she did, and such child left heirs, a prior deed from such child conveyed no interest as against grandchildren. -Parrish v. Treadway, Mo., 183 S. W. 580.

98. Sales Acceptance.-Where the seller of raisins established that they were delivered in time and were of the specified grade, acceptance was made out unless the evidence showed that the seller admitted they were not of grade and agreed to adjust the matter on that basis. -Bronge v. Mowat & Co., Cal. App., 155 Pac. 827.

99. Waranty.-Where a contract for the delivery of "48 hour furnace coke" provided that it should be canceled if the quality of the coke should deteriorate from that shipped during the first one or two months, the trade meaning of the words "48 hour furnace coke" not being established, there was no waranty of the quality of the coke to be delivered during the first one or two months.-Federal Coal & Coke Co. v. Coryell, Mass., 111 N. E. 1041.

100. Specific Performance Action. Where demand was made on the vendor for a deed only a week before his death, and he put off the vendee on a plea of his physical condition, a suit brought against the vendor's administratrix soon after his death to enforce specific performance was brought with reasonable promptness. -Harvey v. Hayes, Fla., 71 So. 282.

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101. Equity.-Specific performance of contract to purchase land will not be denied because the buyers had collected a note they agreed to assign to the vendors; for a court of equity will follow the proceeds of the note and compel delivery thereof to the vendors.Larrabee v. Bjorkman, Ore., 155 Pac. 974.

102. Street Railroads Contributory Negligence. Where plaintiff, after alighting from an automobile which got out of order on the tracks, went back into the machine, though she knew that a street car which her chauffeur had gone to stop, was about due, she was guilty of contributory negligence.-Coleman V. Pittsburgh, H., B. & N. C. St. Ry. Co., Pa., 96 Atl. 1051.

103. Taxation-Levy.-While the term "levy" as referring to executive officers means the taking of property into the possession or control of the officer, taxes are deemed to be levied when the assessments are made and amounts determined.-Mann v. Allen, N. C., 88 S. E. .235.

104. Purpose.-The legislative determination as to what constitutes a "county purpose" for which taxes may be assessed will not be made ineffectual by the courts, unless some constitutional provision is violated, or the particular enactment can have no legal or practical relation to any county purpose.- Stewart v. De Land-Lake Helen Special Road and Bridge Dist. in Volusia County, Fla., 71 So. 42.

105. Telegraphs and Telephones-Franchise. -An incorporated telephone company may sell its property rights, franchises, and privileges, in whole or in part, to another company.-Michigan Independent Telephone & Traffic Ass'n. v. Michigan Railroad Commission, Mich., 157 N. W. 52.

106. Theaters and Shows-Concessionary.The general amusement concessionary from a state fair association, who had control of the amusements on the grounds and their selection, was under duty to the patrons of an amusement device, the privilege to operate which he leased to a subconcessionary for a percentage of receipts, to use reasonable care to keep the equipment reasonably safe.-Hartman v. Tennessee State Fair Ass'n, Tenn., 183 S. W. 733.

107. Negligence.-Proprietor of amusement park held not relieved of liability for injuries by fact that accident was due to negligence of concessioners or their employes.-Whyte v. Idora Park Co., Cal. App., 155 Pac. 1018.

108. Ordinary Care.-One operating an amusement device at a state fair, which carried passengers, owed to them the degree of care which a common carrier of passengers must exercise.-Tennessee State Fair Ass'n v. Hartman, Tenn., 183 S. W. 735.

common

109. -Public Utility.-Under the law, a theater is in no sense public property nor governed by the rule relative to public utilities and the proprietor's right to and control of it, and he may admit or exclude persons at his pleasure.-Woollcott v. Shubert, N. Y., 111 N. E. 829, 217 N. Y. 212.

110. Trusts Resulting Trust.-Where, without any administration, the widow takes the money of deceased and invests it in land, taking title in her name, there is a resulting trust in favor of the child to the extent of its interest in the money.-Walker v. Taylor, S. C., 88 S. E. 300.

111. Use and Occupation-Rental Value.Testator's daughter, who claimed no title to his house, which she refused to give up to the executors upon demand, held liable to them for the fair rental value.-Sherwood v. McLaurin, S. C., 88 S. E. 363.

112.

Vendor and Purchaser-Growing Crops. -Where a purchaser fails to make payments, and in compliance with his vendor's request moves off the property, abandoning his contract, he is not entitled to the crops growing on the premises when he leaves them.-Wensler v. Tilke, Kan., 155 Pac. 946.

113. Rescission.-Misrepresentations as to the location of land entitle a person acquiring the land, relying on the statements, to rescind and recover the price paid.-Wilson v. Robinson, N. M., 155 Pac. 732.

114. Rescission.-One purchasing land containing an orchard under an agreement that it was planted with a certain variety of trees may rescind if it was actually planted with a different variety, notwithstanding there was no difference in the value of the trees.-McGowan V. Willamette Valley Irrigated Land Co., Ore., 155 Pac. 705.

115. Waters and Water Courses-Contract.Where defendant agreed to furnish plaintiff sufficient water to grow his rice crop on land rented from defendant, without reservation in the contract excusing defendant for failure to furnish sufficient water in case of drought, the contract providing for damages if the water supply was insufficient, the defendant was liable, in spite of the fact that an unusual drought caused a deficiency in the water supply.-Northern Irr. Co. v. Watkins, Tex. Civ. App., 183 S. W. 431.

116.- -Prior Appropriator.-In absence of statutory regulation to the contrary, the prior right of appropriation of water rights belongs to the company which first defines and marks its route.-Carolina-Tennessee Power Co. V. Hiawassee River Power Co., N. C., 88 S. E. 349.

117. Wills Attesting Witness.-That the two attesting witnesses were not in complete harmony as to what was said and done, and were doubtful as to their recollection of what testator said and as to whether he signed in the presence of witnesses or acknowledged the instrument to be his will to them, held not to show that the will was not duly executed.-In re Ballard's Estate, Okla., 155 Pac. 894.

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will

118. Directory Provision.-Where devised sums "in trust, the income to be used for preservation of a monument and to care for the lot in the cemetery, but the town not to expend a greater sum than 4 per cent per annum, the trustee need not adopt or conform to the standard of taste of the particular cemetery, the direction of the will being authoritative and explicit.-McCoy v. Town of Natick, Mass., 111 N. E. 874.

119. Interest.-Interest by way of accretion would be added to that part of an ordinary pecuniary legacy that remained unpaid at the expiration of one year from the testator's death. -Gilbert v. Bachelder, Mass., 111 N. E. 956.

120. Specific Legacy.-Where testator, after making specific bequests included a provision, "Of the balance or remainder of my property I give, devise and bequeath to my wife, "the mere use of the word "of," although grammatically construed, it would create an ambiguity, did not defeat the bequest of the entire residuary estate to the wife.-Philbrook v. Randall, Me., 96 Atl. 725.

Central Law Journal.

ST. LOUIS, MO., JUNE 16, 1916.

TEST WHETHER AN EMPLOYE IS ENGAGED IN INTERSTATE COMMERCE.

There does not appear to be any strictly technical test as to an employe being or not engaged in interstate commerce, a position reaffirmed in an opinion handed down by the federal Supreme Court on May 1st, 1916, in the case of Chicago, B. & Q. R. Co. v. Harrington, 36 Sup. Ct. 517, affirming Kansas City (Mo.) Court of Appeals.

This case held that a member of a railway yard switching crew employed in switching loaded coal cars belonging to an interstate carrier did not while so engaged come under the federal Employers' Liability Act, though the coal was to be used by locomotives in interstate hauls.

Justice Hughes said, in basing his reasoning on Shanks v. Railroad, 239 U. S. 356, that: "The federal act speaks of interstate commerce in a practical sense suited to the occasion and 'the true test of employment in such commerce in the sense intended is, Was the employe at the time of the injury engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?' Manifestly there was no such close or direct relation to interstate transportation in the taking of the coal to the coal chutes. This was nothing more than the putting of the coal supply in a convenient place from which it could be taken as required for use. It has been held that an employe of the carrier, while he is mining coal in the carrier's colliery, intended to be used by its interstate locomotives, is not engaged in interstate commerce within the meaning of the federal act and there is no distinction between the two cases."

The Shanks case was in regard to an employe in the machine shop of an interstate carrier for the repair of its locomotives used both in interstate and intrastate commerce. He was injured while engaged in taking down and putting into a new

position an overhead countershaft, through which was communicated power to some of the machinery used in such repair work. He was held not to come under the terms of the federal Employers' Liability Act.

Justice McKenna in the Shank case refers to cases in which the employe was held to be engaged in interstate commerce. For example, a car repairer replacing a drawbar in a car then in use in such commerce; a fireman walking ahead and piloting a locomotive to be attached to an interstate train through switches; an employe carrying a sack of bolts from a tool car to a bridge which were needed in his work on the bridge of an interstate carrier; a clerk going to meet and mark the cars of an inbound interstate train; a fireman hurrying to take an engine of an interstate train already prepared by him and a brakeman placing intrastate cars of a train on a sidetrack. He then cites the coal mining case, supra, as contra, and that of an employe engaged in hauling cars loaded with intrastate freight from one part of a city to another.

Thus we see four cases not embraced, as held by the court, within the rulings made. the other way.

Pedersen v. Railroad, 229 U. S. 146, was the sack of bolts case, supra, and it seems nearer to those on the other side of the line than the others. It is a case that has been very much referred to since it was decided. When employe was injured he was carrying supplies needed in bridge construction. In the Harrington and Shanks cases the employes were carrying materials needed for the running of the trains. In the Pedersen case there was, so to speak, a delivery for a special job; in the other, deliveries were for the general upkeep of interstate traffic. The course of the particular work in the Pedersen case required the doing of a particular, but a necessary thing. Therefore, it was an incident in the work.

Furthermore, we do not think the Pedersen case, strictly considered, was a case of supply at all. It just happened, that this incident of the main work was to supply instanced above as bringing an employe

something needed. Indeed, all of the cases within the federal Liability Act, were necessarily a part of an interstate transaction.

In the cases such as we note as falling the other way, commerce succeeded the doing of the work that was done. It had no particular contemplation in its being done. It more resembled merchant or a contractor doing something in the way of establishing or maintaining a business. This would not be work in carrying on the business. To sustain the Harrington case, as work in interstate commerce, might, in final analysis, make every teamster by whomsoever employed, come under the federal Employers' Liability Act, especially as it lately has been held, that an employe need not be engaged in interstate commerce to be under the protection of the federal Safety Appliance Act. See 82 Cent. L. J. 385. Of course, the terms of the two acts are to be looked to regarding such a conclusion.

that in so far only as or not the particular question of policy involved is within the power of the legislature. If a statute is unconstitutional it declares no policy whatever. Is it then within legislative power to declare that a crime may be the basis of a right in law? Could a statute declare that open robbery or secret larceny, without any interval of statutory limitation, could create title in the robber or thief? The due process of law clause would interfere in such a case.

We concede it would not as to a case of descent or distribution, but might not the principle, that to reward crime is so contrary to the public welfare clause, that a statute vesting title of property, if one murders ancestor, in his murderer, make it unconstitutional?

It seems to us at all events that there is the same implied exception in a general statute as there is in a particular contract, that it is against public policy for a wrongdoer to profit by his own crime. For discussion of the subject, Murderer Taking Under Will or by Inheritance, reference is made to 80 Cent. L. J. 363.

NOTES OF IMPORTANT DECISIONS.

PUBLIC POLICY-STATUTE SPECIFICALLY PROVIDING THAT RIGHTS MAY BE ACQUIRED BY CRIME.-If one might suppose that a statute were specifically to provide that an heir might inherit though he murder his ancestor, the source of inheritance, would it be valid? This question is suggested by opinion in Eversole v. Eversole, 185 S. W. 487, decided by Kentucky Court of Appeals.

This case, going on the theory that a common law principle cannot defeat a statutory right and the principle that one cannot profit by his own wrong, is merely a common law principle, holds, that where a wife kills her husband, by Kentucky statute of descents there is no forfeiture of her statutory rights in his estate.

The court said: "Here we have a case where the legislature has provided in clear and unambiguous language, that on the death of the husband the widow shall have certain property rights in his estate, unless those rights have been barred, forfeited or relinquished. The statutes go further and provide exactly how those rights may be barred, forfeited or relinquished. They contain no provision forfeiting her property rights in case she kills her husband," etc.

When we say our statutes determine public policy on any question, we mean only to say

COMMERCE

EMPLOYERS' LIABILITY ACT.-A distinction not unlike that referred to in the editorial on page 421, supra, is treated by West Virginia Supreme Court of Appeals in the case of McKee v. Ohio Valley Electric Ry. Co., 88 S. E. 616.

In this case it is held that the ruling in Pedersen v. D. L. & W. R. Co., 229 U. S. 146, Ann. Cas. 1914C, 153, which decided that a workman engaged in work on a bridge of an interstate railroad and at the time of his injury carrying a sack of bolts to be used in such work, was under the Employers' Liability Act, did not cover the McKee case.

In this case the plaintiff was killed while working in an excavation made for an abutment of a bridge intended to take the place of a trestle used by an interstate railroad. The Pedersen case, it is conceded, would cover injury in the repair of the trestle, but not for injury in the construction of what would take its place.

It was said the plaintiff's "work did not pertain, extend to, nor touch the girders, the original trestlework, the track, the cars, nor anything else then actually used in transportation. Nor was the purpose of the work on which he was engaged a temporary structure or work designed to release or extricate interstate trains, cars, shipment or traffic from obstruction or blockade, or to restore interstate traffic or

transportation that had been interrupted or temporarily discontinued by accident or otherwise."

There is referred to C. & P. S. R. Co. v. Sauter, 223 Fed. 604, 139 C. C. A. 150, as showing that two roads joined in erecting a temporary bridge to restore interstate traffic, and employe killed in such work was allowed to recover. It was said that, if this case "were binding authority, the circumstances brought the workman into closer relation with interstate than that of decedent in this case."

We perceive no very great distinction in the two cases. The building of a bridge to take the place of trestlework is but to improve the road and it ought not to make much difference whether the bridge was intended for a permanent or a temporary structure. Either work is incident to the keeping in repair an instrumentality of interstate commerce. The application or not of the federal act should not be made to depend on the intent of the builders of the improvement, when it is an improvement of that instrumentality. Suppose the trestle had fallen down during the progress of the work on the bridge, would not by that fact the work become close enough to be under the federal act? If new rails of better quality are being put into a track. would not the placing of them be work bringing workmen under the federal act?

SALES-EXTENSION OF RULE AS TO POISONS, EXPLOSIVES, ETC.-New York Court of Appeals holds that the principle making the manufacturer or seller of goods liable for injuries for defects, where the nature of the thing sold makes it dangerous, whether the injury happens to the immediate or other vendee, should be extended when the nature of the thing is such that it is reasonably certain to place other persons in peril, when an article sold is negligently made. McPherson v. Buick Motor Co., 111 N. E. 1050.

The facts in this case show that a manufacturer sold his vendee, who sold to plaintiff, an automobile with a wheel made of defective wood, so that its spokes crumbled into fragments and the wheel collapsed, injuring plaintiff. There is no claim that defendant knew of the defect, but there is evidence it could have been discovered by reasonable inspection, which was never made.

The New York Court speaks of the rule about articles inherently dangerous, and says: "If the nature of the article is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. If to the element of danger there is added

knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully."

One of the well known cases rejecting the extension claimed is that in which the opinion was written by Judge Sanborn in Huset v. J. I. Case Threshing Machine Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303. This and other cases consider the danger to others as remote, and in some of them a manufacturer who was merely, or to some extent, an assembler of parts, was held entitled to rely on the established reputation of others from whom he purchased the parts.

There was a dissent by one member of the New York Court, but he holds that the rule which the majority thinks ought to be extended should be thus by the legislature and something should be allowed to precedent. The rule as extended, however, seems very reasonable indeed. If defects are conceded and they make a safe-appearing machine inherently dangerous, it ought to weigh greatly, that as a fit machine it is not thus.

JUDICIAL COURTS OF INQUIRY THE ANTIDOTE FOR THE RECALL OF JUDGES.

Wherever life tenure prevails there is need of a speedy, simple, inexpensive manner of preferring and answering charges concerning the conduct of judges. It is、incompatible with American manhood that the people will rest content under the belief, whether or not justified, that any official or man is beyond the reach of the law. Impeachment should be made to fit the crime instead of being the plaything of politics or a club in the hand of spite and it should not be the only way of bringing a life tenure judge to judgment. It is too often

*Mr. Thomas W. Shelton, the author of the suggestion of Judicial Courts of Inquiry, is the efficient chairman of the American Bar Association Committee on Judicial Procedure. His plan for reforming proceeding by having the Supreme Court of the United States prepare a code of procedure at law for the federal courts was enthusiastically adopted by the Association and likely to be adopted at the present session of Congress.